Toxic Business

IN January 1972, a woman in Woburn, Mass., named Anne Anderson took her 3-year-old son Jimmy for treatment of what seemed a severe cold, and soon learned to her horror that the illness was leukemia. This private tragedy would become a public one as, through the 1970's, Ms. Anderson discovered that there existed in Woburn, a small industrial town outside Boston, an unusual number of children afflicted with leukemia. On the terrible day in 1980 when an ambulance took Jimmy to a hospital shortly before his death, one of the firemen on the crew proved to be a man whose own young son had recently died of leukemia. And while the Woburn leukemia cases were being discovered, significant toxic pollution was being found in two of the city's water wells.

For all the fear of chemical waste in the United States since the 1978 revelations at Love Canal, public health problems from dumped toxics have been less frequent than many people had expected. Many epidemiological studies, including a major effort by the National Research Council in 1991, have failed to find any overall pattern of health degradation caused by chemical wastes. The principal reason appears to be that most spilled chemicals have been contained near the dumping point, preventing general exposure. At Woburn, however, toxics infiltrated the city water supply, and from there entered the bodies of children. Anne Anderson and other Woburn parents lived a true chemical horror story, one told in the important new book "A Civil Action" by Jonathan Harr, a former staff writer at New England Monthly.

"A Civil Action" focuses on a liability lawsuit filed by eight Woburn families against Beatrice Foods and W. R. Grace. These corporations were accused of dumping chemicals (especially trichlo roethylene, a probable human carcinogen) in ways that allowed the compounds to reach Woburn's water. In the end, both companies agreed to finance an expensive cleanup plan, Grace pleaded guilty to two felony counts of lying to the Government about what happened, and Beatrice's lawyers were judged to have engaged in misconduct.

Mr. Harr, a skilled writer, grants the litigation masterly treatment. He chronicles years of legal twists and turns in a manner that is thoughtful and never difficult to follow. "A Civil Action" employs a mild version of the novelized you-are-there format, presenting within quotation marks countless passages that are reconstructions rather than authentic quotations. This should strike readers as a reasonable use of the disputed novelization technique, because apparently Mr. Harr has not taken liberty with the reconstituted quotations. The quality and thoroughness of Mr. Harr's presentation make "A Civil Action" a book that is likely to have broad appeal to readers interested in the law or courtroom tactics.

To tell the story of the Woburn lawsuit, Mr. Harr focuses on Jan Schlichtmann, a Boston lawyer who devoted years of exhausting effort to compiling evidence that the various cases of leukemia were connected. Ultimately Mr. Schlichtmann won about $8 million from Grace for the injured families, but after trial and investigation expenses were deducted from his share, he was left with so little that he declared personal bankruptcy. His law practice collapsed, and his car was repossessed. Mr. Schlichtmann triumphed on principle but lost on money, while Grace and Beatrice subverted principle but did well financially, continuing to rack up profits during the years their lawyers blithely denied the harm the companies had done. One chilling moment in "A Civil Action" -- chilling because it represents a mundane event in corporate law -- comes when a Beatrice attorney composes a legal filing formally denying that barrels of toxic waste exist, though days before the lawyer "had seen the barrels with his own eyes."

"A Civil Action" is most compelling when it demonstrates the absurd, lot terylike atmosphere in which personal injury suits are conducted. Because lawyers for the plaintiffs in such cases are usually paid on a contingency basis, Mr. Schlichtmann's firm was at risk. With only limited capital, it squared off against two corporate giants whose access to funds to support legal stalling tactics was essentially unlimited. Mr. Harr details the numerous dilatory or counterstrike motions Beatrice and Grace filed that were designed to run up the plaintiffs' costs till their spirit broke. The companies even moved to discredit Mr. Schlichtmann professionally, according to Mr. Harr, attacking his law license and later offering to stop if he would walk away from the case.

As the case dragged on, Mr. Schlichtmann's firm took out loans to keep itself afloat, until bankers would extend no more credit. A sad but funny scene occurs when one of Mr. Schlichtmann's colleagues discovers a Krugerrand in an office drawer and rushes the coin to a bank to make a loan payment, briefly postponing a foreclosure action. Lawyers for Beatrice and Grace wanted to force Mr. Schlichtmann to settle before the trial; a pretrial settlement would have kept Mr. Schlichtmann in business but perhaps would have sold the interests of the families short. Thus comes a moment of pure courage when Mr. Schlichtmann turns down a pretrial settlement offer of about $4 million from Beatrice. Later the jury absolved Beatrice of liability.

The jury did find Grace liable, but another round of testimony would have been required before damages could be awarded. Mr. Schlichtmann was so strapped that he had little choice but to take whatever Grace dangled. As soon as the $8 million from Grace went into the settlement fund, other lawyers appeared to file claims on Mr. Schlichtmann's share. Then evidence turned up suggesting Beatrice might actually be at fault. Mr. Schlichtmann spent many months in an unsuccessful attempt to reopen the case, and for that additional effort earned nothing.

By the end, "A Civil Action" shows that the compensation the Woburn families received was determined mainly by random legal quirks and the personalities of the lawyers and judges involved. The book leaves one wondering: Is this any way for society to settle its disputes? It also leaves one wondering about current proposals in Congress that would sharply lower the awards plaintiffs can win for personal injury. Though in recent years juries have sometimes conferred excessive awards, it is important to bear in mind that in any contest between personal injury lawyers and corporations, the corporate side holds what is by far the most important advantage, namely the funds with which to finance a stall defense.

GOOD as it is, "A Civil Action" falters by presenting the Woburn case in a one-dimensional, made-for-the-movies way. Mr. Harr does not overdramatize individual scenes, but he does depict a world containing three types of people: innocent victims, lonely crusaders and the malignant pawns of the corporate state. Mr. Schlichtmann is described as a driven child of the 60's who comes to covet the Dmitri suits and Porsche 928's that the big-boy lawyers have, and yet never forgets that law is the pursuit of justice. By the end of "A Civil Action," he has practically driven himself to madness by demanding justice -- if this were a movie, the character would have "best actor nomination" written all over it. "A Civil Action" presents Mr. Schlichtmann as locked in a Manichaean struggle with Jerome Facher, a partner in the blue-blood Boston firm Hale & Dorr and counsel to Beatrice. Mr. Facher is depicted as intelligent, meticulous and bereft of human feeling -- the sort of lawyer who long ago traded his soul for the riches that come with being willing to do or say anything a corporate client wants.

Setting these good and evil personalities against each other gives the book a smooth flow, with the simplified narrative necessary to translate into a movie, yet disrupts the telling of the Woburn story. To maintain his structure, Mr. Harr minimizes the participation of the Environmental Protection Agency, the United States Attorney's office and various Massachusetts state agencies. Mr. Schlichtmann was not a lone crusader: it was the E.P.A. and the Department of Justice that lowered the boom on W. R. Grace. But current convention has it that all Government officials are drones or sellouts, so the Federal role at Woburn is minimized. Nevertheless, "A Civil Action" is a consequential work, one deserving of attention.